January 19, 2018

Berman & Witte on Selden

Harold Berman and John Witte Jr. (Emory University, School of Law (deceased) and Emory University School of Law) have posted The Integrative Christian Jurisprudence of John Selden (in: R.H. Helmholz and Mark Hill, eds., Great Christian Jurists in English History (Cambridge: Cambridge University Press, 2017), 139-61) on SSRN. Here is the abstract:

Seventeenth-century English jurist and legal historian John Selden integrated the three classic schools of jurisprudence - natural law theory, legal positivism, and historical jurisprudence. He defined natural law as a set of fundamental legal principles commanded by God for the creation of a just legal order. He defined positive laws as those rules and procedures created by a just legislature in accordance with both the principles of natural law and the needs of the particular community. And he defined legal history as the account of each community’s legal tradition, which gave expression to natural law and provided limitations on the laws of any given sovereign, even the king himself. Selden’s integrative jurisprudence offered a brilliant defense of the English common law tradition and a skillful interweaving of Jewish legal thought into the Western legal tradition. Selden drew on a robust theology of God: God the creator, who set nature in order and motion in accordance with natural laws; God the law-giver who commands all human creatures to follow the principles of natural law and natural rights; God the judge who called his people to “establish courts of justice” for the protection of justice and mercy in each community; God the covenant-keeper who called his chosen people of Israel to follow the particular commands of the Torah; and God the intellectus agens who guides each good person to self-evident truths, and guides each great legal tradition, most notably the common law, to ever greater approximation of divine justice.